Land and Property Rights in the Peace Process

"[N]othing evokes deeper passions or gives rise to more bloodshed than do disagreements about territory, boundaries, or access to land resources." -- Parker Shipton

The disintegration of property rights occurs during armed conflict, and yet the importance of property, land, homeland, and territory to the cause and conduct of conflict presents particular dilemmas for a peace process. An end to armed conflict, especially prolonged civil conflict, creates a situation whereby a significant proportion of the affected population will begin to claim, re-claim, or access properties, lands, and land-based resources. The result is that land and property rights issues can be thrust to center stage over large geographic areas in a short period of time for considerable numbers of people. And like the complex histories involving property, land, and territory that lead to conflict scenarios, post-war re-establishment of ownership, use, and access rights will likewise be complicated and problematic. Left unattended, land and property issues can provide significant potential for renewed confrontation[1].

At the end of Mozambique's RENAMO war, there was considerable confusion with regard to land tenure dispute resolution, which significantly aggravated the ongoing peace process. In Nicaragua, the Contras re-armed during the peace process over misunderstandings regarding the issue of land access. And, in El Salvador the peace accord was vague with regard to local land tenure, contributing to different expectations, which in turn led to serious stumbling blocks in the implementation of the land question. The land issue ultimately became the final sticking point in the peace process, serving to block complete demobilization.

Because of the spatial nature of both armed conflict and land tenure, the result can be profound within the context of a delicate and incipient peace. The importance of land and property rights issues during and subsequent to civil conflict is reflected in the significant role that agrarian reform has played in many insurgent and revolutionary agendas. More broadly, land issues play a fundamental role in post-war reconciliation and economic rehabilitation. Managing such issues in an effective manner in a peace process is not only important to avoiding disenfranchisement of local populations from land rights, a primary factor contributing to instability[2], but also to the secure re-engagement of populations in familiar land uses and the resulting agricultural production, food security, and trade opportunities important to recovery. The fundamental components of the problem during a peace process include both an awareness of the different sets of tenure issues and their role in conflict and recovery, and the need to embrace an approach that engages local level post-conflict realities as building blocks in new property rights laws. There are essentially three sets of land tenure issues in a peace process:

those that may have contributed to the initial cause and conduct of the conflict,

those -- usually volatile -- land and property issues that emerged during a conflict, and

a set of tenure-related issues necessary for effective recovery.

Land Tenure as the Cause of Conflict

Pre-conflict ideas of the 'unjustness' in the way the state dealt with land rights for portions of the population can constitute an important aggregate force in violent means to right perceived wrongs. Such ideas can range from simple disappointment in, or distrust of the state and its ability, willingness, or bias in handling land issues, to the perception of the state as the enemy. In El Salvador grievances toward the landed elite and the state were at the core of the country's problems since the colonial era, and a primary cause of the conflict in the 1980s. This was also the case in Zimbabwe's liberation war due to land expropriations by the Rhodesian state, and in Mozambique's RENAMO war and Ethiopia's Derg war as a result of government villagization programs. Variants of such conditions also prevail for problems in southern Mexico, and in the way the land issue has been handled over the course of the conflict between the Palestinians and the Israelis. In the latter example, land confiscation for Israeli settlement-building and the resulting Palestinian grievances has been a significant feature of the overall problem.

Pre-conflict ideas of injustice regarding land and property can become especially problematic if they merge with other issues not necessarily related to land, serving to further decrease the state's influence. This is a fundamental part of the situation in Somalia, where disputes over access to grazing and water resources quickly merged with a history of perceived wrongs done to clans and subclans on issues not directly about land. Animosities tied to historical events also have played a fundamental role in perceptions about who has legitimate access to what lands and properties in the Balkans. The social fluidity of conflict then allows for the opportunity to act, with outcomes resulting in a very different land tenure situation than what existed prior to a conflict.

Land Tenure Issues Emerging During Conflict

Sarah Peterson describes a negotiation process in South Africa involving land reform that has, with effort, led to longer-term coexistence.

Attempting to address only pre-conflict territory, land, and property issues in a peace process misses the very volatile tenure issues which develop during conflict, and which are most operative at the close of a war. While such issues can build upon prewar tenure problems, they nonetheless act to thrust the post-war lands situation in new directions. This is primarily due to the fact that armed civil conflict profoundly changes relationships among people. Because land tenure (even state tenure) is a system of rights and obligations in human relationships regarding land, accepted and established property rights arrangements can be at the forefront of change during conflict. The social and spatial repercussions of violence, dislocation, destruction of property, battlefield victory and loss, and food insecurity, together with the breakdown of administrative, enforcement, and other property-related institutions and norms, significantly alter ongoing relationships between people(s), land uses, production systems, and population patterns. In essence, armed conflict and its repercussions reconfigure the network of social relations upon which all land tenure systems depend. One of the more acute examples in this regard is in the Middle East among Palestinians themselves, with those caught selling land to Israelis now facing a potential death sentence[3].

There are three broad processes which change the land tenure situation during conflict. First, physical separationof people from established home areas and ways of land use and tenure due to wartime dislocation, can be the first and most dramatic step toward the development of a changed approach to land rights. Physical separation changes, terminates, or puts on hold prevailing rights and obligations among people regarding land and property, especially where actual occupation, or social position forms the basis or a significant aspect of claim. In Guatemala, dislocation meant a changed approach to land rights for disadvantaged groups within communities, such as women and those of lower socio-economic strata. In Mozambique, the dislocating effects of the war led to concentrations of migrants, land-holders, and local customary groups in agronomically valuable areas, all pursuing very different approaches to land access, claim, and use. In these cases, significant incompatibilities in these approaches created problems for the peace process.

With no legitimate way to resolve competing claims to land and property after a war, the result can be land-holders abandoning features of tenure systems because disputes and the lack of legitimate mechanisms to resolve them have made such features unworkable. Or they believe there is little point in adhering to property rights rules that others are not following. And because dislocatees often develop or deepen political awareness while forced away from home areas, land problems in a post-war phase can easily be placed within the larger political dynamic[4]. Such a situation can challenge post-war authority structures and sources of legitimacy -- two of the most problematic aspects of a peace process.

Second, civil conflict necessarily results in a reduction in the power and penetration of state law, with the overall effect spatially variable. Early in a war the state's land and property administration institutions in affected areas of the country can be rendered crippled or inoperable, and rules unenforceable. This comes about due to general insecurity, areas occupied by opposition groups or populations sympathetic to them, diversion of resources, and the destruction of the physical components of the lands system such as local registries and other records. In East Timor the land and property building was among the first destroyed by militia activity along with most property rights records. As civil conflict grew in Somalia in the early 1990s, a reduced state capacity contributed to certain areas of the country being claimed by nomadic pastoralists under clan transient-access rights arrangements, by small-scale agriculturalists, by large scale-land interests accessing lands through the instruments of the crumbling state, and by heavily armed interests seeking access and control over lands by force. Also in Somalia, land registries for the valuable irrigated areas in the central part of the country have been largely destroyed and will lead to significant problems once a central government and peace prevail.

Also, forms of land tenure may be created which are directly connected to the opposition or insurgency, which is made legitimate by direct military occupation and military strength[5]. There can also be a reaction to the combination of insecurity generated during conflict, reduced capacity of the state, and the desire for the return of some form of order in society. The emergence of Shari'a courts in Somalia is one example of this, as is, arguably, the emergence of the Taliban in Afghanistan. Both were able to field their own mechanisms of enforcement for a variety of institutions, including land tenure.

Third, for many who find themselves in conflict scenarios, identitycan be, or can quickly become, intricately bound up in land occupation, access, or perceived rights to specific lands in very powerful ways. The existence of ethnic, religious, geographic, or other identities can be based on connections to land, home area, or territory. With armed conflict underway in such a context, some groups will seize the opportunity to advance the goals of substate self-determination, especially with regard to land. The result can involve land claim justification based on historical occupation. Such justification can gain renewed strength during conflict, and the pursuit of a 'return' to historical lands or territory from which groups were expelled or departed, recently or long ago, can become a priority in a peace process -- the Middle East again being a notable example. And as the identities of those involved in armed conflict develop to take on significant enmity with an opposing group or groups, approaches to land issues will reflect this and can become a prominent feature in the conflict and subsequent peace process. The difference between Palestinian and Israeli approaches to land and land tenure are, in a number of ways, grounded in identity. Identity for Palestinians especially, has developed to a significant degree to mean opposition to Israel, Israelis, and Israel's approach to land administration.

Land Tenure in Recovery

Julia Chaitin land-tenure issues in Israel/Palestine.

While land issues can be at the center of many civil conflicts, in subsequent peace efforts they are most frequently addressed in a general framework presented in peace accords, or national-level legislative change. While a peace accord or victory in civil conflicts can to a certain degree resolve a spatial contest in a macro sense, implementation of accords (or new constructs associated with victory) for a population constitutes a local level land and property- institutional dilemma not easily overcome. Although a peace process can attempt to reconstitute local level institutions, the difficulty stems more from issues of legitimacy and capacity of institutions to effectively recognize and resolve important local level tenure issues than from the ability of the peace process to derive and place institutions within different levels of government. This can mean that in many cases land access or re-access problems at the individual, household, community, and commercial levels will operate in a functional institutional vacuum.

The fate of evidence of rights to land and property during armed conflict is a particularly acute recovery problem. Claims to properties, lands, and territories have as their defining feature evidence that is regarded as legitimate by members of a certain 'community' (variably defined). Control over what is or becomes recognized as legitimate evidence is a difficult issue. Competition and confrontation over who exercises this control (definition of legal evidence) with regard to specific land(s) and properties can result in problems, as some claimants find themselves with evidence different from that considered legitimate or possessed by others as post-war scenarios develop.

The decision by the international community to allow the Bosnian Serbs to keep lands seized from Bosnia and Herzegovina meant that virtually no evidence other than ethnicity was legitimate subsequent to the conflict. Property holders who were 'cleansed' from certain areas were no longer able to use what were once legitimate titles or other documents as evidence for possession of property. Changes in evidence can also manifest itself in a more nuanced fashion as the relative value of pre-conflict evidence can shift to reflect changed circumstances. This was the case in Mozambique, where 'social' customary evidence such as testimony, community and lineage membership, and history of occupation were significantly devalued due to widespread dislocation. At the same time, the existence of permanent, physical investments in land, such as agroforestry trees, greatly increased in value as evidence[6]. Outright victory in a conflict can result in profound change in legitimate evidence, particularly as pursued by the state. Such was the fate of many land documents in Ethiopia when the Derg military regime took power in the mid 1970s, and again a decade and a half later when the Tigrayan-Eritrean forces took over.

Following the end of a conflict, disappointment in a newly reconstructed state can manifest itself in the development of different forms of local alternatives during recovery, particularly since the ideology, mobilization, and wartime aspirations are still fresh in the minds of many, and a post-conflict state can find that it has reduced influence and legitimacy. In Zimbabwe local distrust of the state was significant even when the insurgency won and went about establishing a government and policies regarding land. This was because local chiefs were purposefully left out of the new state due to their alliance with the Rhodesian administration.

Post Conflict Land Policy Reform

Peter Woodrow discusses his work designing a dispute resolution system for East Timor land tenure conflicts.

Legislative change in a peace process deserves particular mention in a discussion of post-war land tenure. One of the hallmarks of a peace process, and often compelled by a peace accord and the international community, legal reform is intended to promote social change, and new laws or modifications to laws are meant to aid in the inclusion and reconstruction of society. Revising national policy to incorporate functional aspects of a peace accord involving land and property is frequently an important part of the post-war endeavor[7]. Such legislative change, however, can be profoundly out of step with emerging tenure realities in post-conflict scenarios. Griffiths[8] notes that informal ties of mutual rights and obligation are frequently much stronger than formal law, and as such can serve to deflect the latter.

This is the case in post-conflict situations where legislative change can be overlaid onto sets of rights and obligations that are already in existence, very binding, and often much stronger than new or revised laws. In a land tenure context, this means that during a peace process, relationships that have been created and maintained during a war to facilitate property, land, and territorial needs (land market transactions, inheritance, etc.) and aspirations (group claims to lands) will predate and can be significantly stronger than any new laws attendant on a fragile peace and a war-weakened state. The effect can be particularly pronounced as mechanisms for disseminating and enforcing new laws (especially with agrarian, semi-literate, war-weary populations) will also be weak or nonexistent. Hence the objective of changing social arrangements in certain ways with legislation frequently fails or is deflected in a peace process.

Land policy reform in a peace process is a delicate matter. Not only do new laws need to address land and property issues important to the cause of the conflict, issues which emerge during conflict, and issues important for recovery (including restitution and international investment), but new laws must embrace what people are already doing "on the ground," with a view to moving eventually from the fluidity of post-conflict situations to a more solidified and peaceful social and legal environment.

Positive examples exist. In a case from India, local-level state officials in some locations are given the discretion to operate at the interface between formal and informal legal systems and pursue opportunities for adjustments between systems. In this case local-level officials do not seek to impose state law, but instead attempt to convince, co-opt, or realistically use any legal system, custom, norm or combination thereof to attain the state's objectives. While not born out of armed conflict, the example nevertheless provides some potential utility for a peace process. Local-level officials can be charged with facilitating the dialogue, interaction, and adaptation between the state and other normative orders which are in place subsequent to a conflict, especially with regard to land dispute resolution.

Ethiopia provides a different, and more formalized example. After several decades of civil conflict, Ethiopia's constitutional article 78 (5) now accords full recognition to non-state customary and religious courts of law, and their legal guarantee is ensured. In Ethiopia significant room appears to be allowed for litigants to 'forum shop' where customary and religious courts only hear cases where contesting parties consent to the forum[9].

In the Mozambican peace accord and subsequent legislation regarding land, broad state recognition of multiple approaches to tenure has contributed much to the success of the processes. In East Timor a special restitution law is to be put into place as a priority law to deal with the many problematic issues involved in the post conflict situation.

Conclusion

Most civil institutions cannot endure the stresses of armed conflict. This is especially the case for land tenure institutions where land issues were a significant component of the cause and maintenance of the conflict. What is needed in peace processes attendant on today's conflicts, is recognition of, 1) the difference between pre-conflict, post-conflict, and recovery tenure issues; and 2) the opportunities that exist for engaging multiple approaches to land and property that will, in time, especially when supported by legal reform, move to a more solidified social, political, and legal environment within which land and property issues operate.

Because all societies experience land conflict, ultimately what is important to a peace process is equitable access to legitimate land tenure institutions able to embrace issues that exist between groups or between individuals who may view land resources very differently, possess profoundly different evidence with which to pursue claims, and may have participated or sympathized with different sides in the conflict.

[2] R.A. Hutchinson, Fighting for Survival: Insecurity, People and the Environment on the Horn of Africa. (Gland, Switzerland: International Union for the Conservation of Nature IUCN, 1994).

[3] Unruh JD. Land tenure and legal pluralism in the peace process. Peace and Change: A Journal of Peace Research 28 (2003): 352-376.

[4] Unruh JD. Land tenure and legal pluralism in the peace process. Peace and Change: A Journal of Peace Research 28 (2003): 352-376.

[5] Mozambique provides an example where RENAMO, during the war and the subsequent peace process, both reallocated land as a way to gain support and turned away those who had been issued land concessions by the FRELIMO government, regarding these as illegitimate. See Hanlon, Mozambique: Who Calls the Shots? At the same time, RENAMO allocated and reallocated land to smallholders for the purpose of near-term food supply and issued its own concessions for timber and other resource extraction activities likewise regarded as not legitimate by the FRELIMO government See Vines, RENAMO: From Terrorism to Democracy in Mozambique?

[7] For example see The World Bank and The Carter Center (WBCC) From Civil War to Civil Society: The Transition from War to Peace in Guatemala and Liberia. (Atlanta: The World Bank and The Carter Center, 1997); African-European Institute. Acordo Geral de Paz de Mocambique (Amsterdam: African-European Institute, 1993); N. J. Colletta, M. Kostner, and I.Wiederhofer, The transition from war to peace in Sub-Saharan Africa(Washington, D.C.: The World Bank, 1996).

[9] United Nations Country Team for Ethiopia (UNCTE) "Situation Report for Ethiopia- September - October 1999," (Office of the U.N. Resident Coordinator, Addis Ababa, Ethiopia, 1999).

Use the following to cite this article:
Unruh, Jon D.. "Land and Property Rights in the Peace Process." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: January 2004 <http://www.beyondintractability.org/essay/land-tenure>.

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